San Diego Metropolitan Transit System * * * PUC TRANSIT CASE. PERB DECISION NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * * (PERB A464M)

* * * PUC TRANSIT CASE. PERB DECISION NUMBER CONTAINS INCORRECT
LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * *
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN DIEGO METROPOLITAN TRANSIT
SYSTEM,
Employer,
and
TRANSIT ELECTROMECHANICS UNION,
Petitioner,
and
PUBLIC TRANSIT EMPLOYEES
ASSOCIATION,
Exclusive Representative.
SMCS Case No. 17-3-137
Case No. LA-PC-16-M
PERB Order No. Ad-464-M
May 15, 2018
Appearances: Juan G. Gonzalez, President, for Transit Electromechanics Union; Aguirre &
Severson by Maria M. Severson, Attorney, for Public Transit Employees Association.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on Transit Electromechanics Union’s (TEU) appeal from an administrative
determination by the State Mediation and Conciliation Service (SMCS). SMCS dismissed
TEU’s petition for certification as the bargaining representative of a unit of employees of the
San Diego Metropolitan Transit System (System). Because the employees in the proposed unit
were already represented in a larger unit by the Public Transit Employees Association (PTEA),
SMCS determined that TEU’s petition was a petition for decertification, and that such a
petition could only be filed for the existing unit.

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On appeal, TEU argues that its petition should be treated as a petition for certification,
and that federal law permits the filing of such a petition to sever a unit of craft employees from
a larger existing unit. PTEA’s opposition to the appeal acknowledges the right to sever a unit
of craft employees, but contends that the proposed unit is not appropriate.
Based on our review of TEU’s appeal, PTEA’s response, and the case file in this
matter,1 we reverse the administrative determination and remand the matter to SMCS for
further processing.
BACKGROUND
The System is a transit district established by Public Utilities Code (PUC) section
120000 et seq., and its labor relations are governed by sections 120500-120509.2 Accordingly,
it is not subject to the Meyers-Milias-Brown Act (MMBA), which applies to most local public
agencies.3 (See San Diego Trolley, Inc. (2007) PERB Decision No. 1909-M.) The System’s
enabling statute gives SMCS jurisdiction to investigate and resolve questions concerning
representation. (PUC, § 120505.) In doing so, SMCS “shall be guided by relevant federal law
and administrative practice developed under the Labor Management Relations Act, 1947, as
amended.” (Ibid.)
SMCS was transferred to PERB from the Department of Industrial Relations in 2012.
(Stats. 2012, ch. 46, § 11.) Following this transfer, PERB issued regulations governing
1 PERB’s Appeals Office rejected TEU’s appeal. We reversed (San Diego
Metropolitan Transit System (2018) PERB Order No. Ad-460-M), and PTEA and the System
were given the opportunity to file responses to the appeal. The System filed no response.
2 The System is also referred to as the San Diego Metropolitan Transit Development
Board. (PUC, § 120050, subd. (b).)
3 The MMBA is codified at Government Code section 3500 et seq.
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SMCS’s handling of cases arising under the various PUC transit district statutes, including the
System’s. (PERB Regs. 93000-93080.)4
TEU filed its petition with SMCS on October 2, 2017. The petition described the
proposed unit as comprising “skilled laborers specializing in electro-mechanical trades which
require college coursework and completion of an apprenticeship.”5 The petition identified
PTEA as an organization recognized or certified as the exclusive representative of or known to
have an interest in representing the employees covered by the petition.
On October 6, 2017, SMCS issued the administrative determination dismissing the
petition on the following grounds:
California Code of Regulations, title 8, section 93005 governs
petitions for certification and decertification pertaining to the
District. This section defines petitions for certification and
decertification as they are defined under Federal law. The instant
petition appears to be a decertification, in that it seeks to remove
the incumbent bargaining representative, and replace it with
Petitioner.
Under applicable Federal law, the general rule is that the
bargaining unit in which the decertification election is held must
be co-extensive with the certified or recognized unit. (Campbell
Soup Co. (1955) 111 NLRB 234; W.T. Grant Co. (1969)
179 NLRB 670; Mo’s West (198[7]) 283 NLRB 130.) Because
Federal law makes no provision for the decertification of part of a
certified or recognized unit, the existing unit normally is the
appropriate unit in decertification cases. (Campbell Soup Co.,
supra, 111 NLRB 234.)
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
5 The petition identified the following classifications as included in the proposed unit:
LRV Electromechanic, MOW Electromechanic, LRV Lineman, MOW Lineman, LRV
Assistant Lineman, MOW Assistant Lineman, Revenue Maintainer I, Revenue Maintainer II,
Revenue Maintainer III, Track Serviceperson.
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Under these authorities, the regulations do not allow for
Petitioner to sever or carve out a smaller bargaining unit where
the larger bargaining unit has a bargaining representative in
place. Therefore, the petition must be denied.[6]
DISCUSSION
TEU argues that SMCS erred by characterizing its petition as a decertification petition,
and that a petition for certification under PERB Regulation 93005 may seek to sever a unit of
craft employees from an existing unit.7 We agree.
PERB Regulation 93005 allows the filing of petitions for certification and
decertification, describing them as follows:
(a) The investigation of a question concerning representation of
employees shall be initiated by the filing of a petition with
SMCS. Such petition shall be called a petition for certification
and is a petition which would arise under paragraph (1)(A)(i) and
(1)(B) of Section 9C [sic] of the Labor-Management Relations
Act. It may be filed by any employee or group of employees or
any individual or labor organization acting on their behalf and
claiming to represent a majority of the employees in an
appropriate unit or by a district.
In the event any petition seeks to include employees covered in
whole or in part by an existing collective bargaining agreement
between the district and any labor organization, such petition in
6 The administrative determination also stated in a footnote that it was “unclear”
whether the petition was served on the System and PTEA, as required by PERB Regulations.
No specific service defect is identified, however. Because an administrative determination
must “contain a statement of the issues, fact, law and rationale used in reaching the
determination” (PERB Reg. 32350, subd. (b)), it is not clear that the administrative
determination in this case intended to rely on lack of service as an alternative ground for
dismissing the petition. In any event, both the System and PTEA have acknowledged
receiving the petition—the System in an e-mail message to SMCS on October 3, 2017, and
PTEA in its response to the appeal—and neither has disputed that the petition was properly
served.
7 As we concluded in San Diego Metropolitan Transit System, supra, PERB
Order No. Ad-460-M, SMCS’s determinations regarding representation petitions involving
the PUC transit districts are appealable to the Board pursuant to PERB Regulation 93025,
subdivision (d).
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order to be considered timely must be filed within the period 120
to 90 days, inclusive, prior to the date such collective bargaining
agreement is subject to termination, amendment or modification.
(b) Petition for Decertification. The investigation of a question
concerning representation, alleging an individual or labor
organization which has been certified or is being currently
recognized as the bargaining representative is no longer such
representative shall be called a petition for decertification and is
one of the type which would arise under paragraph (1)(A)(ii) of
Section 9(c) of the Labor-Management Relations Act. It may be
filed by any employee or group of employees or any individual or
labor organization acting on their behalf and shall be filed as set
forth in (a).
Nothing in the text of this regulation compels SMCS to treat TEU’s petition as a
decertification petition. Although PERB Regulation 93005, subdivision (b) allows a labor
organization acting on behalf of a group of employees to file a decertification petition, such a
petition only concerns whether the recognized or certified bargaining representative enjoys the
support of the bargaining unit. Replacement of the incumbent by a different organization is
not expressly contemplated. On the other hand, subdivision (a) contemplates a petition for
certification by a labor organization seeking to replace the incumbent. Subdivision (a)’s first
paragraph does not foreclose such a petition. And its second paragraph—defining a specific
window period in which a petition for certification must be filed if it “seeks to include
employees covered in whole or in part by an existing collective bargaining agreement between
the district and any labor organization” (PERB Reg. 93005, subd. (a))—would be out of place
if a petition for certification was not available to a labor organization seeking to replace the
incumbent.
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The Labor-Management Relations Act (LMRA)8 provisions referred to in PERB
Regulation 93005 shed no light on this question. Those provisions describe types of petitions,
but do not use the terms “petition for certification” or “petition for decertification.”9
In light of this ambiguity, we turn to “relevant federal law and administrative practice
developed under the [LMRA],” as directed by the governing statute. (PUC, § 120505.) As
TEU’s appeal correctly points out, and as PTEA does not dispute, the National Labor Relations
Board (NLRB) has long entertained petitions to sever a craft unit from an existing, represented
unit. (National Tube Co. (1948) 76 NLRB 1199, 1202 (National Tube).) These petitions are
contemplated by section 9(b)(2) of the LMRA, which states: “[T]he [NLRB] shall not . . .
decide that any craft unit is inappropriate for such purposes on the ground that a different unit
has been established by a prior Board determination, unless a majority of the employees in the
proposed craft unit votes against separate representation.” (29 U.S.C. § 159(b)(2).) The
NLRB continues to consider craft severance petitions, although the precise test to be applied to
8 The LMRA is codified at 29 U.S.C. section 141 et seq.
9 Section 9(c)(1)(A) of the LMRA provides that a petition may be filed:
by an employee or group of employees or any individual or labor
organization acting in their behalf alleging that a substantial
number of employees (i) wish to be represented for collective
bargaining and that their employer declines to recognize their
representative as the representative defined in subsection (a) of
this section, or (ii) assert that the individual or labor organization,
which has been certified or is being currently recognized by their
employer as the bargaining representative, is no longer a
representative as defined in subsection (a) of this section.
(29 U.S.C. § 159(c)(1)(A).) Section 9(c)(1)(B) provides that a petition may be filed “by
an employer, alleging that one or more individuals or labor organizations have presented
to him a claim to be recognized as the representative defined in subsection (a).”
(29 U.S.C. § 159(c)(1)(B).)
6

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determine the appropriateness of the proposed unit has evolved since National Tube. (See
American Potash & Chem. Corp. (1954) 107 NLRB 1418, 1422 (American Potash) [declining
to extend National Tube]; Mallinckrodt Chem. Works (1966) 162 NLRB 387, 397
(Mallinckrodt) [overruling American Potash]; Battelle Mem’l Inst. (2016) 363 NLRB No. 119
[declining to revisit Mallinckrodt].)
The NLRB cases cited in the administrative determination—Campbell Soup Co., supra,
111 NLRB 234, W.T. Grant Co., supra, 179 NLRB 670, and Mo’s West, supra,
283 NLRB 130—are not controlling here. While these cases do hold that the appropriate unit
for a decertification election is the existing unit, each involved a petition filed by an employee
seeking to oust the incumbent bargaining representative in favor of no representative. Because
they did not involve one organization seeking to replace another, they do not conflict with
National Tube and its progeny.10
Therefore, we conclude that TEU’s petition should be treated as a petition for
certification, not decertification, and it cannot be rejected on the sole ground that TEU seeks to
10 The NLRB appears to reserve the term “decertification” exclusively for petitions
seeking to oust the incumbent representative in favor of no representative. (29 C.F.R.
§ 102.60(a).) As explained in Member Peterson’s concurrence in Campbell Soup Co, supra,
section 9 of the LMRA was specifically amended to allow decertification petitions because
“the Board’s decisional policy allowed employees to oust an unwanted incumbent union only
by designating some other union.” (Id. at pp. 236-237; see also Wohlmuth & Krupka, The
Taft-Hartley Act and Collective Bargaining (1948) 9 Maryland L. Rev. 1, 10 [“Under the
[NLRA], the Board recognized the right to change bargaining representatives and provided
election machinery for this purpose. However, the effect of the new decertification provision
[in the LMRA] is to provide a way that employees can change bargaining representatives for
no representatives at all”].)
In this regard, the NLRB and PERB use the term “decertification” differently. (See
PERB Reg. 32770, subds. (a) and (b) [petition for decertification may be filed by employees or
by employee organization, and must be accompanied by proof that employees no longer desire
to be represented by the incumbent or that they wish to be represented by another employee
organization]; Mendocino College Instructors Association, CTA/NEA (Piche) (1983) PERB
Decision No. 369.)
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supplant PTEA as the representative of only some of the employees in the existing unit. We
express no opinion on PTEA’s contention that the proposed craft unit is inappropriate, which is
properly addressed by SMCS on remand.
ORDER
State Mediation and Conciliation Service’s administrative determination in Case
No. LA-PC-16-M is hereby REVERSED and the matter is remanded to SMCS for further
processing.
Chair Gregersen and Member Banks joined in this Decision.
8